Baranski v. United States, No. 4-11-CV-123 CAS, 2015 WL 3505517 (E.D. Mo. June 3, 2015)

Key Insight: Court found privilege had been waived where at-issue documents were intermingled with non-privileged documents and produced in a consecutively numbered batch, where the government provided no information regarding how the documents were reviewed, where there was an almost 2 year delay until the production of the privilege log, where the documents were not marked as privileged, where approximately 10% (58/570) of the documents produced were privileged, where at least one privileged document was used as an exhibit in deposition without objection and where the government did not discover the allegedly inadvertent disclosure for nearly two years; where defendant provided evidence of the cost and burden of restoring backup tapes (14 weeks of work at a cost of approximately $85,400) court concluded that at-issue emails were not reasonably accessible and declined to compel production where plaintiff failed to establish that the emails may contain significant information

Electronic Data Involved: ESI, emails